R. SELVARAJ Vs. MURUGESAN

JUDGEMENT

(1.) The complainant in C.C.No.334 of 2004 on the file of the Judicial Magistrate, Kangayam is the appellant. He filed a private complaint against the respondent stating that the respondent has committed an offence punishable under Section 138 of the Negotiable Instruments Act (for short "N.I.Act").

(2.) During trial, he filed a Petition for alteration of charge from Section 138 of the N.I.Act to Sections 417, 420 and 422 of the IPC and that was allowed and the accused/respondent herein was questioned under Section 313 Cr.P.C., in respect of charges under Sections 417, 420 and 422 of the IPC., and he denied the same. The trial Court acquitted the respondent under Sections 417, 420 and 422 of the IPC. Aggrieved by the same, this Appeal is filed by the complainant / appellant.

(3.) Mr.N.Manokaran, learned counsel for the appellant submitted that the trial Court without properly appreciating the fact that even though the offences under Sections 417, 420 and 422 of the IPC were not made out, having regard to the evidence adduced, the appellant has proved the charge under Section 138 of the N.I.Act and therefore, the trial Court ought to have convicted the respondent for the offence under Section 138 of the N.I.Act by invoking the provisions of Sections 221 and 222 of the Cr.P.C. and therefore, the Appeal has to be allowed by convicting the respondent for having committed the offence under Section 138 of the N.I.Act. He submitted that the signature in the cheque was admitted and the appellant also proved that the respondent had no funds and with an intention to cheat the appellant, he had given a different signature in the cheque and therefore, the cheque was returned with an endorsement "signature differs". As it is also proved that, on the relevant date, the respondent had no sufficient funds in his account, the appellant has proved the ingredients of Section 138 of the N.I.Act and therefore, the trial Court ought to have convicted the respondent for the said offence. He further submitted that the defence of the respondent that the cheque was lost and he gave a complaint was not proved and admittedly, the complaint was given after the cheque was presented for collection and only to defeat the right of the appellant, the complaint was said to have been given and that was not spoken to by the respondent and DW.1 was not a competent person to give evidence regarding the complaint given by the respondent and therefore, under Section 118 and 139 of the N.I.Act, the trial Court ought to have drawn presumption in favour of the appellant and convicted the respondent for offence under Section 138 of the N.I.Act even though the offences under Section 417, 420 and 422 of the IPC were not made out.